https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11426

Masoin & others v Lagat & another (Miscellaneous Application Probate & Administration E042 of 2025) [2026] KEHC 11426 (KLR) (Civ) (24 July 2026) (Ruling) Neutral citation: [2026] KEHC 11426 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Application Probate & Administration E042 of 2025 JM Chigiti, J July 24, 2026 Between Maria Jebet Masoin & others Applicant and Kipkoech Lagat & another Respondent Ruling 1.Before this Court is a reference arising from the taxation of the Respondents' Party and Party Bill of Costs dated 4th November 2019. By a ruling delivered on 30th October 2025, the learned Taxing Officer taxed the said Bill at Kshs. 232,250. 2.Aggrieved by that decision, the Applicants filed the present reference seeking, principally, that the taxation be set aside and the Bill be remitted for fresh taxation before a different Taxing Officer or, in the alternative, that this Court reassess the costs payable. 3.The taxation arose from High Court Miscellaneous Civil Application No. 53 of 2019, Maria Jebet Arap Masoin & Another v Kipkoech Lagat & Another. In that matter, the Applicants moved the High Court by a Notice of Motion dated 7th March 2019 concerning proceedings in Eldoret Chief Magistrate's Court Succession Cause No. 236 of 2017. 4.The Applicants sought, inter alia, orders setting aside and vacating the proceedings and consequential orders made by the subordinate court; a declaration that the said proceedings were null and void ab initio for want of jurisdiction; and an order calling for the succession cause and admitting it to the High Court for hearing and determination. 5.The challenge to the jurisdiction of the subordinate court was substantially premised on the alleged value of the deceased's estate, which the Applicants contended exceeded the pecuniary jurisdiction of that court. 6.The application was struck out with costs on 9th October 2019, whereupon the Respondents filed their Party and Party Bill of Costs dated 4th November 2019 for Kshs. 1,016,690. 7.Upon taxation, the Taxing Officer allowed Kshs. 150,000 as instruction fees and Kshs. 50,000 as getting-up fees. Together with the other allowed items, the Bill was taxed at Kshs. 232,250. 8.The Applicants contend that the Taxing Officer erred in principle by applying Schedule 6 of the Advocates (Remuneration) Order, 2014 instead of Schedule 10 relating to probate and administration matters. They submit that the appropriate instruction fee was Kshs. 10,000. 9.In support of that position, the Applicants relied principally on Kerio Valley Development Authority v Nathan M. Pala t/a Muhatia Pala Auctioneers & 2 Others and Sarah Chelagat Samoei v Musa Kipkering Kosgei & Another, which dealt with taxation of costs arising from applications for transfer of suits. 10.The Applicants further challenge the award of Kshs. 50,000 as getting-up fees on the ground that the proceedings were commenced by Notice of Motion and determined through written submissions and did not proceed to trial. 11.The Respondents oppose the reference. They contend that the underlying proceedings were not merely an application for transfer. The Applicants had additionally sought substantive declaratory orders nullifying the proceedings and consequential orders made by the subordinate court. 12.The Respondents therefore maintain that the Taxing Officer properly exercised her discretion in assessing instruction fees at Kshs. 150,000. They rely on Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board for the settled principle that a Judge should not interfere with the discretion of a Taxing Officer unless an error of principle is established. 13.On getting-up fees, the Respondents contend that the proceedings were defended and proceeded to hearing and that the award of Kshs. 50,000 ought therefore to be upheld. Issues for Determination 14.Having considered the reference, the affidavits, the impugned ruling and the rival submissions, the issues arising for determination are:a.Whether there is a proper basis for interfering with the award of Kshs. 150,000 as instruction fees;b.Whether the award of Kshs. 50,000 as getting-up fees was proper; andc.What orders should issue. Analysis Whether the Court should interfere with the instruction fees 15.The principles governing interference with a Taxing Officer's decision are settled. In Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board [2005] eKLR, the Court of Appeal held that a Judge will not ordinarily interfere with the exercise of discretion by a Taxing Officer unless it is demonstrated that the Taxing Officer committed an error of principle. 16.An error of principle may also be inferred where the amount awarded is so manifestly excessive or manifestly low as to justify the conclusion that the Taxing Officer proceeded upon an erroneous principle. The same approach was adopted in First American Bank of Kenya Ltd v Shah & Others [2002] 1 EA 64. 17.The principles governing taxation must equally balance the interests of the successful litigant against the wider requirement that costs should remain reasonable. In Premchand Raichand Ltd & Another v Quarry Services of East Africa Ltd & Others [1972] EA 162, the Court emphasized that costs should not be permitted to rise to such a level as to restrict access to justice, while a successful litigant should nevertheless be fairly reimbursed for costs reasonably incurred. 18.Against those principles, I have considered the Applicants' contention that the underlying proceedings were merely an application for transfer of a succession cause. 19.The Notice of Motion dated 7th March 2019 demonstrates otherwise. Apart from seeking that the succession cause be called for by the High Court, the Applicants sought orders vacating and setting aside the proceedings and consequential orders made by the subordinate court and a declaration that the entire proceedings were null and void ab initio for want of jurisdiction. 20.The application therefore required the High Court to determine a substantive jurisdictional controversy and, depending on that determination, invalidate proceedings and orders already made by the subordinate court. 21.The supporting affidavit further raised extensive factual matters relating to the composition and alleged value of the estate, the Applicants' claimed beneficial interests, an alleged gift inter vivos, previous citation proceedings, a cross-petition and objection, and the subordinate court proceedings. 22.In those circumstances, I agree with the Respondents that the decisions in Kerio Valley Development Authority v Nathan M. Pala t/a Muhatia Pala Auctioneers & 2 Others and Sarah Chelagat Samoei v Musa Kipkering Kosgei & Another are distinguishable. 23.Those decisions concerned applications whose essential character was the transfer of an existing suit from one court to another. The proceedings giving rise to the present taxation went beyond a straightforward transfer application and sought substantive orders nullifying proceedings already undertaken by the subordinate court. 24.I am equally not persuaded that Schedule 10 became automatically applicable merely because the proceedings arose from an underlying succession cause. The proper approach is to examine the nature of the actual proceedings in respect of which the advocate was instructed and the substantive reliefs sought. 25.The Applicants' miscellaneous application was instituted separately in the High Court and invoked the Court's jurisdiction to nullify proceedings undertaken by the subordinate court. I therefore find no error of principle merely from the Taxing Officer's decision to treat the proceedings differently from an ordinary application arising within a succession cause. 26.Where the value of the subject matter cannot be ascertained from the pleadings, judgment or settlement, the Taxing Officer has discretion to assess reasonable instruction fees having regard to the nature and importance of the matter, the interests of the parties, the complexity involved and other relevant circumstances. This principle was restated by the Court of Appeal in Joreth Ltd v Kigano & Associates [2002] eKLR. 27.In the present case, the Taxing Officer found that the subject-matter value could not be ascertained for purposes of calculating instruction fees and accordingly exercised her discretion. 28.Although the value of the deceased's estate featured prominently in the underlying proceedings, that value could not automatically constitute the value of the subject matter for taxation. The application did not seek recovery or distribution of property worth that amount. Its immediate subject was the validity and jurisdictional competence of the subordinate court proceedings. 29.Nevertheless, having considered the nature and scope of the orders sought, the jurisdictional issue raised and the proceedings sought to be nullified, I am unable to find that the award of Kshs. 150,000 was so manifestly excessive as to disclose an error of principle. 30.The jurisdiction of this Court on a reference is supervisory and not an invitation to conduct a taxation afresh merely because the Court might have arrived at a different figure. 31.I therefore find no sufficient basis for interfering with the award of Kshs. 150,000 as instruction fees. The same is upheld. Getting-up fees 32.The award of Kshs. 50,000 as getting-up fees stands on a different footing. 33.In the impugned ruling, the Taxing Officer, after assessing instruction fees at Kshs. 150,000, simply stated:“Add getting up fees of Kshs. 50,000." 34.No reasons were given for the conclusion that the proceedings qualified for getting-up fees. 35.Under Schedule 6 of the Advocates (Remuneration) Order, getting-up fees are ordinarily payable where a case has been prepared for trial. They are not automatically earned merely because proceedings are defended or because an advocate has prepared and filed submissions. 36.The proceedings in question were commenced by Notice of Motion and disposed of through written submissions. They did not proceed to a trial requiring preparation of the nature contemplated by the provision relating to getting-up fees. 37.The Respondents' argument that the application was defended and proceeded to hearing does not, without more, establish an entitlement to getting-up fees. A contested interlocutory or miscellaneous application does not become a trial merely because both parties file affidavits and submissions. 38.To the extent that the Respondents rely upon provisions governing getting-up fees on appeal, the underlying proceedings were not an appeal. Those provisions cannot therefore provide the legal foundation for the award. 39.I consequently find that the award of Kshs. 50,000 as getting-up fees was made without a proper legal foundation and amounted to an error of principle. 40.Ordinarily, where an error of principle is established, the matter may be remitted to the Taxing Officer for reconsideration. However, as recognized in Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board, the Court retains discretion, where the justice of the case requires, to determine the matter itself. 41.The Bill of Costs dates back to 2019 and the error identified relates to a discrete item that is not legally recoverable in the circumstances of this case. Remitting the Bill for another taxation would therefore serve no useful purpose and would only prolong the dispute. 42.The award of Kshs. 50,000 as getting-up fees is accordingly set aside and taxed off in its entirety. Disposition 43.The Applicants have succeeded only partially. Their challenge to the instruction fee of Kshs. 150,000 fails, while their challenge to the getting-up fee of Kshs. 50,000 succeeds. 44.The Party and Party Bill of Costs was taxed at Kshs. 232,250. Upon deduction of the Kshs. 50,000 improperly awarded as getting-up fees, the Bill stands at Kshs. 182,250. 45.Considering the parties' respective degrees of success in the reference, I find it appropriate that each party bears its own costs. Orders:1.The reference is partially allowed.2.The Taxing Master's assessment of Kshs. 150,000 as instruction fees is upheld.3.The award of Kshs. 50,000 as getting-up fees is set aside and taxed off in its entirety.4.The Respondents' Party and Party Bill of Costs dated 4th November 2019 shall stand taxed at Kshs. 182,250.5.Each party shall bear its own costs.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET THIS 24TH DAY OF JULY 2026……………………………………J. CHIGITI (SC)JUDGE